Why Justice Scalia should be a constitutional comparativist ... sometimes.

• Author: Gray, David C.

INTRODUCTION I. THE LIVING ROOTS OF CONSTITUTIONAL COMPARATIVlSM II. JUSTICE SCALIA'S OPPOSITION TO CONSTITUTIONAL COMPARATIVlSM III. AN ORIGINALIST ARGUMENT FOR CONSTITUTIONAL COMPARATIVISM IV. ORIGINALIST AS PRAGMATIST? V. HOW TO BE AN ORIGINAL CONSTITUTIONAL COMPARATIVIST CONCLUSION: FUTURE CHALLENGES FOR A UNIFIED THEORY OF CONSTITUTIONAL COMPARATIVISM Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.

--Antonin Scalia, Associate Justice of the Supreme Court ([dagger])

INTRODUCTION

The proper role of international law in domestic constitutional adjudication is a hot issue in legal circles and beyond, particularly in light of attacks on an "activist" judiciary, presently the fad among pundits, politicians, and pulpitarians. While the contest has been simmering for years in Congress, (1) on the Court, (2) and among academics, (3) the top blew off the pot during the 2003 and 2004 Supreme Court terms "[w]hen [Justice] Kennedy, who's hardly a liberal, started citing these international sources ... [and] the subject exploded in the broader political world." (4)

It is no surprise to his fans or critics that Justice Scalia has been at the front of this contest. In written decisions, (5) public speeches, (6) and an unprecedented debate on the topic with Justice Breyer, (7) Justice Scalia has drummed a regular beat against the use of contemporary foreign law materials when interpreting the Constitution. (8) This Article provides a critical exegesis of his position and argues that, in a narrow set of constitutional cases, including those implicating the Eighth Amendment prohibition against cruel and unusual punishment, Justice Scalia, as an originalist, ought to refer to contemporary foreign sources.

The first Part of this Article outlines positions adopted by members of the Court in favor of constitutional comparativism. With this frame drawn, the second Part elaborates Justice Scalia's commitment to originalism as a theory of constitutional interpretation and explains his opposition to the use of contemporary foreign law materials when interpreting the Constitution. The second Part also responds to some of Justice Scalia's more prominent critics, arguing that their attacks misunderstand Justice Scalia's views, and therefore fail to provide argumentative clash. The third Part adopts a novel approach, taking a position within originalism and arguing that, on pain of contradiction, originalists must take into account contemporary views, foreign and domestic, in a limited set of cases where the meaning of the Constitution's universalist language is at stake. The fourth Part returns to the task of sympathetic exegesis, arguing that Justice Scalia's steadfast refusal to consider foreign sources is a practical response to an apparently insurmountable epistemic challenge. The final Part sketches a solution to this epistemic challenge and outlines a role for contemporary international law in originalist constitutional interpretation. (9)

1. THE "LIVING" ROOTS OF CONSTITUTIONAL COMPARATIVISM

   The best place to start is with a visit to the opposing camp. At least four present Justices of the Supreme Court, Stevens, Kennedy, Ginsburg, and Breyer, and the recently retired Justice O'Connor, are proponents of what David Fontana might call "positive," "ahistorical comparativism." (10) Their views spring from the premise that interpreting the Constitution is not merely an exercise in painstaking historical investigation, but requires reading constitutional language with the benefit of intervening events and experiences. In a recent speech before the American Society of International Law, Justice Ginsburg stated the point thus:

   The notion that it is improper to look beyond the borders of the United States in grappling with hard questions has a close kinship to the view of the U.S. Constitution as a document essentially frozen in time as of the date of its ratification. I am not a partisan of that view. U.S. jurists honor the framers' intent "to create a more perfect Union," I believe, if they read our Constitution as belonging to a global twenty-first century, not as fixed forever by eighteenth-century understandings." (11) The contest that Justice Ginsburg identifies is at the core of debates between originalists and advocates of a "living Constitution." (12)

   The contemporary stink over the use of foreign sources in constitutional adjudication is most directly attributable to Justice Kennedy and his opinions in Lawrence v. Texas (13) and Roper v. Simmons. (14) While Justice Kennedy has not separately published his views on the proper place of foreign materials in domestic constitutional jurisprudence, these two decisions paint a vivid picture of the Constitution as containing objective normative standards that cannot be understood without reference to contemporary events and circumstances. Assuming that this is his view, it follows that Justice Kennedy is committed to considering foreign sources when doing so enhances the capacity of the Court to determine the scope of objective constitutional standards or to put into perspective normative commitments held by our forebears, ancient and recent.

   While neither Lawrence nor Roper expresses any concern for what foreign nations may think of U.S. courts, Justice Kennedy has suggested that international reputation may provide another reason for domestic courts to refer to foreign materials in domestic constitutional litigation. (15) Foreign courts frequently cite decisions of U.S. courts, particularly the Supreme Court. (16) If domestic courts fail to reciprocate, then the United States risks losing its voice on issues of international concern and a diminishment in international standing. In light of this, Justice Kennedy has suggested that domestic courts ought to cite foreign decisions, when relevant, as a matter of reciprocity, to preserve our authority on issues of international significance and to maintain our position in the international community. (17)

   A signatory to the majority opinions in Lawrence and Roper, Justice Breyer is perhaps the most publicly vocal advocate on the Court for some form of constitutional comparativism. Justice Breyer described his position most recently in a 2005 debate with Justice Scalia hosted by the United States Association of Constitutional Law. (18) There, he emphasized that the increasing relevance of foreign materials to domestic cases is a function of two intersecting phenomena. The first is globalization. The second is the spread of democracy and human rights. With expanding transnational intercourse and broadening commitments to democratic and human rights principles has come an internationalized interest in many of the "ancient and unchanging ideals" embedded in the Constitution. (19) As a result, in many countries, "human beings, ... called judges,... have problems that often ... are similar to our own." (20) They deal with similar texts and, like domestic courts, "are trying to protect human rights ... and democracy." (21) While foreign cases can never provide a perfect analogue to domestic cases, and certainly are not binding, (22) Justice Breyer maintains that foreign materials frequently are relevant as models and sources of data when domestic litigation implicates rights or issues of active liberty. (23)

   Though she has left the Court, Justice O'Connor's views on myriad issues have had broad influence and promise to remain significant in domestic constitutional jurisprudence. Her willingness to consider foreign materials is no exception. As it does in Justice Breyer's, globalization plays a central role in Justice O'Connor's views on the relevance of foreign materials to domestic constitutional litigation. In a 2002 address to the American Society of International Law, Justice O'Connor argued that the expansion of international law and international treaty regimes, combined with cross-border commerce and increased accessibility to information, has enhanced our "awareness of, and access to, peoples and places far different from our own." (24) In light of these conditions, domestic decisions may have significant impact beyond state borders. Domestic judges may also "learn from other distinguished jurists who have given thought to the same difficult issues that we face here." (25)

   Justice O'Connor restated her commitment to the use of foreign materials in Roper v. Simmons. (26) Though Justice O'Connor dissented, she wrote separately to maintain her view that the use of foreign materials is particularly appropriate in Eighth Amendment cases, where the Court has a "constitutional obligation" (27) to exercise its independent moral judgment in order to determine whether "the evolving standards of decency that mark the progress of a maturing society" (28) place a particular punitive practice in the category of the cruel and unusual. While not determinative of evolving standards of decency, Justice O'Connor holds a place for foreign materials to confirm the reasonableness of domestic consensus and the independent moral calculus of the Court. (29)

   Justice Ginsburg also is not shy about referring to international law in her opinions, particularly where the issues address parallel contests in foreign countries and in the international community. In Grutter v. Bollinger, the Court upheld the constitutionality of the University of Michigan Law School's race-sensitive admissions system. (30) Writing in concurrence, Justice Ginsburg pointed out that the Court's holding "accords with the international understanding of the office of affirmative action." (31) This was not a surprise. Four years earlier, in a lecture to the New York City Bar Association, (32) Justice Ginsburg argued that domestic jurisprudence touching on issues of affirmative action...